Guice v. Parker

B. F. SAFFOLD, J. The bill was filed by the appellee to subject land to the payment of the purchase-money» under the vendor’s lien. The chief error assigned is that .the court refused to strike from the file the complainant’s answer to the defendant’s cross-bill. It appears that as the complainant was a non-resident, the register, under the 31st rule in chancery, issued a commission to take his answer, but not knowing the first name of the commissioner selected, he sent it to him in blank, with direction to insert his name. The commissioner did so, and took the answer, which was forwarded to the register, and filed by him. In Worsham, v. Goar, (4th Port. 441,) it was held that a commission to take a deposition must be perfect when it leaves the hands of the clerk. If sent forth in blank, it issues to no person, and the consent of the clerk for the one receiving it to fill all blanks will not legalize the act. The result of the failure of the register to issue a proper commission is that the answer is not sworn to. This answer contains a demurrer to the cross-bill, for want of equity. The merit of the cross-bill was in the discovery it sought. To maintain the jurisdiction for relief, as consequent upon the discovery, it is necessary to allege in the bill that the facts are material, and that the discovery of them by the defendant is indispensable as proof; that the plaintiff is unable to prove such facts by other proof. This allegation was not made in the cross-bill. It was, therefore, subject to the demurrer. Without recapitulating the testimony, it is sufficient to decide that the proof abundantly shows that the defendant cannot maintain his version of the contract. There was no necessity for a reference to the register. The decree is affirmed.